THE WILL
~ OF THE cf0'
PEOPLE
How Public Opinion Has Influenced
the Supreme Court
and Shaped the Meaning
of the Constitution
BARRY FRIEDMAN
Farrar, Straus and Giroux / New York
INTRODUCTION
"[TJo decide upon the meaning ofthe constitution"
I
n the first half of the 1930S, the American people faced two seemingly
intractable problems. The first was the Great Depression, the country's
worst-ever economic downturn. Desperate for a leader, if not a savior, the
people elected Franklin Roosevelt President and gave him a strong Democratic
majority in Congress. Following Roosevelt's inauguration, Congress began
adopting New Deal measures with alacrity; the pace of legislation was
simply breathtaking. Many today dispute how effective these measures ultimately
were, but at the time, Roosevelt's program offered something people
sorely needed: hope.
The second problem was the Supreme Court. In case after stunning case
the justices struck down New Deal legislation, ruling that it violated the Constitution.
To Roosevelt and the millions who supported him, the Supreme
Court's persistent veto was an unfathomable breach of the democratic principle:
that the will of the people should govern.
In the winter of 1937, Roosevelt struck back at the Court. Fresh from a
landslide victory that T11e New York Times dubbed "a political Johnstown
flood," Roosevelt determined that the justices would no longer stand in the
way of his popular agenda. 1 He asked Congress to give him the power to add
an additional appointee to the Court for evelY justice over the age of seventy
who refused to retire. Should the elderly and recalcitrant justices not
yield, Roosevelt planned to "pack" the Court with as many as six new members
of his choosing.
4 'C?D THE WILL OF THE PEOPLE
For five anxious months, the question of whether or not Congress should
approve Roosevelt's dramatic plan gripped the country. In the very thick of it
Newsweeh reported that "state legislators, public officials, editors, and millions
of plain John Does had joined in a furious debate." Gallup polling, still
in a relatively primitive state, showed voters shifting to and fro in response
to the latest development. "Street-corner discussions, arguments at restaurant
tables, a seemingly endless stream of radio addresses and newspaper reports,
protracted hearings before the Senate Judicimy Committee and animated
congressional debates" convinced Merlo Pusey, a prominent historian and
editorialist who chronicled the fight and went on to write the Chief Justice's
biography, that "our national conscience has been deeply stirred." 2
How Congress voted on Roosevelt's plan would say much about the future
of the Supreme Court. But it would say far more about the American people
and the sort of government they preferred. To hear it told, they faced a stark
choice: either demand the tdumph of the popular will and approve FDR's proposal
to subjugate the Court, or insist that even a democratic government
must operate within the limits of the Constitution and reject the plan.
As it happened, the country and the Court found a way out of the seeming
dilemma, a solution that has influenced the nature of American government
ever since. Congress rejected Roosevelt's plan. But it did so only after the
Court signaled its capitulation and began to approve New Deal measures,
at which point public opinion turned squarely against the plan. In effect, a
tacit deal was reached: the American people would grant the justices their
powel~ so long as the Supreme Court's interpretation of the Constitution did
not stray too far from what a majority of the people believed it should be.
For the most part, this deal has stuck.
Roosevelt's attack on the Court was brazen, but it was only one of many
that have occurred throughout the nation's life. What follows is the chronicle
of the relationship between the popular will and the Supreme Court as it
unfolded over two hundred-plus years of American history. It reveals how
the Supreme Court went from being an institution intended to check the
popular will to one that frequently confirms it. And it explains that this occurred
as the American people gradually came to understand and then to
shape the role played by the justices, thus defining the terms of their own
constitutional democracy.
JUDICIAL REVIEW AND DEMOCRACY
The specific target of Roosevelt's ire was the power ofjudicial review, the practice
by which courts, and particularly the Supreme Court, determine whether
INTRODUCTION oS' 5
government actions are consistent with the Constitution. In American life,
the Constitution reigns supreme. Exercising judicial review, courts have the
power to strike down even congressional statutes and acts of the President
when they are found out of keeping with constitutional standards.
Throughout history, the chief complaint against judicial review has been
that it interferes with the right of the people to govern themselves. After
the Supreme Court struck down yet another New Deal measure in 1936,
the New York Daily News, the country's first tabloid, with a circulation at the
time of well over one million, thundered: "We do not see how old judicial
gentlemen ... can forever be permitted to override the will of the people as
expressed through the people's own elected Legislatures, Congress and President."3
A union official, expressing support for Roosevelt's plan, explained the
problem: "Unless all branches of our national government are made responsive
to changing conditions and thereby truly democratic, popular elections
are turned into a farce. The judiciary is no exception."4 The President, the
members of Congress, and the states' chief executives and legislators all are
accountable to the people through regular elections. Not so the justices of
the Supreme Court, who are appointed (not elected) and who-short of removal
by impeachment, which has never happened-serve for life. Yet when
the justices base a ruling on the Constitution, the country must live with
that decision unless and until the Court reverses itself or the rare constitutional
amendment is adopted. There is no overriding the Court otherwise.
This extraordinary power was a rather uniquely American innovation,
emerging without plan or design in the period prior to the Constitutional
Convention as a means of checking the excesses of democracy.5 In the years
following independence, increasing numbers of Americans watched with
apprehension as legislative assemblies trampled fundamental rights. Gradually,
almost imperceptibly, judges answered the call of lawyers to refuse to
enforce such laws on the ground that they were "repugnant to" the state
constitutions. Then the framers of the United States Constitution adopted
the innovation of judicial review to solve a problem of their own: how to ensure
that the state governments followed national authority. James Madison,
one of our most revered founders, suggested that Congress have a veto
over every state law, but few of his colleagues were willing to go that far. Instead,
they left it to the judges to decide if particular state laws (and perhaps
federal laws as well) conflicted with national authority, and in particular
with the Constitution.
Although few in the early days of American democracy recognized the
full potential of judicial review, some who did were alarmed. As the struggle
over ratification of the Constitution entered its most heated days, the Anti-
6 1'?0 THE WILL OF THE PEOPLE
Federalist (i.e., anti-ratification) pamphleteer "Brutus" weighed in, expressing
grave concern about the proposed federal judiciary. He thought it almost
unimaginable to give judges the power "to decide upon the meaning of the
constitution." 6 Brutus pointed to Great Britain, where "I believe [the judges]
in no instance assume the authority to set aside an act of parliament under
the idea that it is inconsistent with their constitution." Brutus reminded his
readers that the judges possessing this extraordinary authority "cannot be
removed from office or suffer a diminution of their salaries." "The supreme
court under this constitution," Brutus predicted-some would say quite
accurately-"would be exalted above all other power in the government,
and subject to no control." No fewer than four times he intoned: "[TJhere is
no power above them."7
When Roosevelt defended his Court-packing plan, he joined hands across
the ages with Brutus in condemning the Supreme Court's unaccountability
to the popular will. Devoting one of his legendary fireside chats to the plan,
Roosevelt described American government as a "three horse team provided
by the Constitution to the American people so that their field might be
plowed.... Two of the horses [the Congress and the executive] are pulling
in unison today; the third is not." Roosevelt stressed that this was not as it
should be: "It is the American people themselves who are in the driver's
seat. It is the American people themselves who want the furrow plowed. It
is the American people themselves who expect the third horse to pull in
unison with the other two." 8
Many at the time were of like mind.
These sorts of challenges to the Supreme Court's power should sound
extremely familiar. Throughout the course ofAmerican history, many of the
United States'most revered public figures have expressed similar sentiments.
Like Roosevelt and his followers in the I930S, Thomas Jefferson, Abraham
Lincoln, and Theodore Roosevelt before them all struggled with the judiciary,
and all said essentially the same.9
Jefferson, who fought history's first
great battle against the Court, complained that "our judges are effectually
independent of the nation." 10 In its notorious I857 decision, in Dred Scott v.
Sandford, the Supreme Court denied Congress had the constitutional authority
to resolve the question of slavelY in the territories. Lincoln responded:
"[I]f the policy of the government, upon vital questions affecting the whole
people, is to be irrevocably fixed by the decisions of the Supreme Court ...
the people will have ceased, to be their own rulers." II In his I9I2 third-party
bid for the presidency, Theodore Roosevelt concurred: "TheAmerican people
and not the courts are to determine their own fundamental policies." 12
The current mantra against "activist judges" is simply the latest incarnation
of this persistent complaint about judicial accountability. If anything is
INTRODUCTION c6' 7
new today, it is only that, for the first time in American history, the Supreme
Court's power of judicial review has come under siege simultaneously from
both sides of the ideological spectrum.13 Modern-era critics on both the
political left and the right paint a picture in which Brutus's worst nightmare
has come true in spades. The problem is no longer judicial review, they say;
it is "judicial supremacy"-on issue after issue of grave public concern the
justices insist on having the last word, if not the only one. Critics who agree
on little else now unite in decrying the Court's all-powerful approach.
DEBATING CONSTITUTIONAL MEANING
There is a weighty response to this complaint about judicial hegemony. In
the American system of democracy, the popu,lar will nonetheless is subject to
those boundaries specified in the Constitution. What is the point of having
a written Constitution if government officials can transgress it at will?
When the justices strike down laws, they are quick to offer reassurance
that they are not imposing their own will on the American people; rather,
they simply act in the name of the Constitution. "There should be no misunderstanding
as to the function of this court," urged Justice Owen Roberts,
one of the men in the middle on a divided Supreme Court during the New
Deal struggle. "This court neither approves nor condemns any legislative
policy. Its delicate and difficult office is to ascertain and declare whether the
legislation is in accordance with, or in contravention of, the provisions of
the Constitution; and, having done that, its duty ends." 14
Roberts's absolution-lithe Constitution made us do this"-reverberates
throughout history's most famous decisions, both those reviled and those
admired. When the Supreme Court limited Congress's power over slaveq
in Dred Scott, it was (naturally) offered as a necess31Y interpretation of the
Constitution. When the Supreme Court struck down school segregation in
Brmlln v. Board of Education, the reason was that the Constitution's Equal
Protection Clause demanded it. When the Court protected the right of Jehovah's
Witnesses children who refused to salute the flag in public schools
because their religion forbade it, the First Amendment to the Constitution
was determinative. "The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities," explained the Court majority. IS
Anytime the Supreme Court is under attack, its defenders will quite naturally
brandish the Constitution, insisting that those who govern must play
by its rules. Opponents of the Court plan-and in the 1930S this included
many of FDR's political supporters-argued that threatening the Court effec-
8 '6b THE WILL OF THE PEOPLE
tively threatened constitutional government itself. Frank Gannett owned a
chain of newspapers in the Northeast; he favored Roosevelt early on but came
to have a change of heart and ultimately led the attack against the Court
plan through his National Committee to Uphold Constitutional Government.
Gannett and many others saw Roosevelt's proposal as a giant end run around
the Constitution. Gannett penned an open letter to the American people in
which he said: "If it is necessary to change the Constitution it should be
done in the regular way." 16 The respected historian James Truslow Adams,
one of a flood of notables who took to the radio to debate Roosevelt's proposal,
worried aloud that "if the Constitution is to be changed by pacldng the
Court, then that same method might some day be used to alter those parts
which guarantee us our religious and other liberties." 17
The great problem, of course, is that when the issue is fraught, the
American people typically disagree over what the Constitution means. So
do the justices themselves. That is why judicial decisions interpreting the
Constitution become so controversial.
Roosevelt did not challenge the Supreme Court merely by relying on the
election returns (though he surely did allude to the strength of his popular
majority). Instead, he argued that the justices' understanding of the Constitution
was wrong. During his fireside chat on his plan to reorganize the judiciary,
Roosevelt pointed to vehement dissent within the Court itself over the
proper outcome of New Deal cases. "In the face of these dissenting opinions,
there is no basis for the claim made by some members of the Court
that something in the Constitution has compelled them regretfully to thwart
the will of the people." His plan, Roosevelt explained, was simply a way "to
take an appeal from the Supreme Court to the Constitution itself." He insisted
that if read properly, the Constitution provided ample power to address
the problems of the Depression. Roosevelt urged the American people to read
the Constitution for themselves: "Like the Bible, it ought to be read again
and again." 18
As often as not, fights overjudicial power really are fights over the meaning
of the Constitution. This is not to say that judicial power isn't an issue
in and of itself; it is always a fair question in a democracy whether a public
official has too much power, or is insufficiently accountable to the people.
But judicial power becomes an issue precisely because judges interpret the
Constitution and because judicial decisions seem so very final. This has
been the case from the start. Brutus did not challenge the authority of the
Supreme Court in the abstract. Rather, he opposed adoption of the Constitution
because he feared the power of a strong central government. Brutus be-
INTRODUCTION oS' 9
lieved the Court inevitably would side with the national government against
the states, and so he fretted over the extent ofjudicial power. The very same
was true of Jefferson, Lincoln, and Theodore Roosevelt: each attacked the
Court precisely because he had a very different understanding of the Constitution
from the one held by a majority of the justices.
Caught up in immediate controversy, Americans can overlook this point.
They fail to see that what looks to be a roaring battle over judicial power is
simply the latest round in a much broader struggle over the proper interpretation
of the Constitution. In a constitutional democracy, majority will regularly
is pitted against minority rights. This tension, which is at the heart of
constitutional democracy, would exist even if there were no judges. It is the
meaning of the Constitution itself that is up for grabs, and judicial power is
nothing more than a pawn in that battle.
In a sense, the history of the relationship between judicial review and
the popular will has been one of great continuity. The justices decide cases
involving constitutional questions of substantial importance to the American
people. Given the seeming finality ofjudicial decisions, those who disagree
with the justices lash out at the Court and the power ofjudicial review. Those
who agree with the justices jump to their defense, waving the Constitution.
And a fight over the Constitution becomes one about the judges.
CONSTRUCTING JUDICIAL POWER
Although this is a story of continuity, it also is one of fundamental change.
The nature and extent of the Supreme Court's authority have plainly grown
over time, in ways that are both unmistakable and undeniable. The power
the Court wields is the product of a lengthy evolution in American political
thought. In the course of struggling over judicial review as a proxy for their
greater constitutional disagreements, the American people came to tailor, and
then ultimately to accept, the role of the Supreme Court. 19 We have the
Court we do because the American people have willed it to be so.
History makes clear that the classic complaint about judicial reviewthat
it interferes with the will of the people to govern themselves-is radically
overstated. The American people have always had the ability to limit judicial
review-or even to eliminate it entirely. The persistent question throughout
history has been whether, and to what extent, they should exercise this
power. In the course of answering that question, the American people have
confronted, and given meaning to, the idea of democratic government under
a constitution.
10 'CD THE WILL OF THE PEOPLE
During the debate over ratification of the Constitution, Alexander Hamilton,
writing as "Publius" in The Federalist Papers, rejected Brutus's prediction
that the judiciary would prove all powerful. Hamilton's "Federalist No. 78"
remains today one of histOlY'S great defenses of judicial independence. But
the most memorable part of Hamilton's tract was his point that there was no
need to wony about the judges because they had little capacity to threaten
democratic principles.
Judges, Hamilton explained, lacked both the executive's control over the
"sword" and Congress's control over the "purse." Possessing "neither FORCE
nor WILL, but merelyjudgment," the judicimy "must ultimately depend upon
the aid of the executive arm even for the efficacy of its judgments." For this
reason, he assured his readers, the judicialY would be "the least dangerous"
of the three branches of government.20
It turned out that Hamilton was at
least as prescient as Brutus about judicial power.
It is difficult to appreciate today the devastating nature of some of the
early challenges to judicial authority. In the aftermath of the Civil War, Congress
had the task of "reconstructing" the southern states as part of restoring
the Union. Many at the time believed that given the chance, the Supreme
Court would render a decision invalidating continued militmy rule of the
South before Congress could consolidate the gains the Union had achieved
on the battlefield. But quite unlike all the hand-wringing we hear today, judicial
supremacy did not trouble members of Congress then. Listen to Representative
John Bingham of Ohio, a Republican leader of the Congress:
If ... the court usurps power to decide political questions and def[iesl a free
people's will it will only remain for a people thus insulted and defied to demonstrate
that the servant is not above his lord by procuring a further constitutional
amendment and ratifying the same, which will defy judicial usurpation
by annihilating the usurpers in the abolition of the tribunal itselpl
As it turned out, Bingham's colleagues did not have to go nearly so far as
"annihilating" the Supreme Court to ensure they controlled it. Rather, Congress
simply withdrew the Court's jurisdiction at a critical moment, and the
justices bovved to a greater power. So much for Brutus's worries.
The irony of the defeat of Roosevelt's Court-packing plan is that the velY
weapon denied him in his struggle against judicial authority was used freely
byAbraham Lincoln's generation. Lincoln and his fellow Republicans swept
into power as the Civil War began. The Dred Scott decision having made the
potential dangers of judicial review perfectly clear, the newly Republican
Congress was hardly going to stand pat and allow the justices to threaten its
INTRODUCTION CiS' 11
efforts to hold the Union together. Three times during the Civil War and its
aftermath, Congress altered the number ofjustices who sat on the Supreme
Court. In each instance, proponents of enlarging or reducing the number of
justices offered a reason that had nothing to do with ensuring political control
of the Court, just as Roosevelt wrapped his own plan in the flimsy gauze of
an argument that the elderly justices were behind in their work and needed
help. But those watching were perfectly aware that by altering the number
of justices, Congress ensured that the Court majority rested in hands that
could be trusted.22
Roosevelt failed where the Civil War Congress succeeded in part because
Americans' understanding of the Supreme Court and its role had changed
between 1868 and 1937. This was not history's first change of attitude toward
judicial review. When the Supreme Court decided the Dred Scott case, holding
that Congress could not regulate slavery in the territories, many of lincoln's
generation feared the decision would ultimately tear the country asunder.
Yet very few of them said that Dred Scott should simply be ignored or defied.
This may not be surprising to us today, when talk of defying the Supreme
Court is taboo, a signal that one is unwilling to play by the basic rules of
American governance. It was apparently unsurprising to many Americans in
1857 as well. Nonetheless, a generation or two earlier, defiance of the Supreme
Court by state governments was the order of the day.23
Some prominent works of political science and history have taken into
account the relationship between the popular will and judicial power, but
they fail to capture how that relationship has evolved throughout the course
ofAmerican history. This is unfortunate, because it is only through observing
this evolution that we can begin to really understand the authority the
Supreme Court wields today. In 1960, Harvard political scientist Robert
McCloskey published a wonderful, engaging history entitled The American
Supreme Court, in which he argued that the justices ignore public opinion
at their peril. For this reason, he concluded, the Court "seldom strayed very
far from the mainstreams of American life and seldom overestimated its
own power resources." 24 Despite its remarkable insight, McCloskey's justly
famous history failed to grapple with just how judicial power had been
sculpted by those very instances in which the justices did in fact overestimate
their own power. The justices today unequivocally exercise more authority
than they did at the founding. But that authority exists as it does
today only because through a process of trial and error, step and misstep,
the country came to understand what it wanted out of the Supreme Court,
as well as what it would tolerate.
I
I.:
12 -eo THE WILL OF THE PEOPLE
THE CONTOURS OF THE HISTORY
There have been four clitical periods in the American people's changing relationship
with judicial review and the Supreme Court. The lines between
the periods are hardly distinct. HistOlY resists easy categorization; major developments
come in fits and starts. Still, attention to these periods allows us
to see how American thought about the role of judicial power has evolved
over time.25
The first period-from the time of independence until the early I800ssaw
the remarkably quick acceptance of judicial review, followed by grave
threats to the independence of the judicimy as the implications of the practice
became evident. It was in this period that judges began to strike state legislative
measures and the Constitutional Convention in Philadelphia adopted
judicial review as a means of keeping the states in line with national authority.
Soon enough, though, the country saw the danger of unaccountable judges
with the power to interpret the Constitution. In the late eighteenth century,
the country split into two political parties, which had great enmity for each
other. Following the "Revolution of r800," in which Thomas Jefferson's Republicans
captured the executive branch and the Congress, the Federalist
Party tried to fight a rem'guard action from the judicialY. The newly empowered
Republicans were not prepared to accept such partisan conduct on the
bench. Congress abolished some of the judgeships created by the Federalists
and threatened the impeachment of Supreme Court justices, acts that
were criticized by the Federalists as a grave disregard for the independence
of the judiciary. This first period came to a close in the early I800s only after
a tacit deal had been reached by which judicial independence was guaranteed
so long as the judges refrained from engaging in blatant partisan politics
from the bench.26
The second period, which ran from roughly the War of I8I2 until the
Nullification Crisis of r832-I833, was characterized by frequent, offiCially
sanctioned defiance of judicial decrees. Most of the Supreme Court's constitutional
decisions in this period were aimed at state governments. Yet in the
states'rights environment in which the Court was operating, the states would
regularly fail to show up when haled before the justices and would often
defy orders the Court issued. Virginia's highest court refused to concede that
the Supreme Court had the authority to review its decisions. Georgia actually
hanged a man in the face of a Supreme Court order to the contraryY
This period of defiance came to a gradual close only when the national
leaders recognized they needed the Supreme Court to help keep the states
in line. President Andrew Jackson had no particular fondness for the Su-
INTRODUCTION c:0' 13
preme Court, whose rulings often conflicted with his policies. In 1832, however,
when South Carolina claimed the power to nullify federal laws and
threatened to secede from the Union, Jackson did an abrupt about-face. He
in turn threatened to use force against South Carolina and placed the authority
of his office squarely behind the Supreme Court as an arbiter of
constitutional disputes.28
The Supreme Court's reviled decision in Dred Scott ushered in the third
period of judicial authority, that of controlling the courts. Though the nation
had come gradually to reject official defiance of Court decisions, what was
to be done if the Court put the country into a seemingly impossible situation,
as it seemed to many to have done in Dred Scott? Ifjudicial decisions
were going to stick, in ways potentially in conflict with the popular will, then
the answer was to exercise control over the courts to make sure the judges
handed down only those decisions the people were prepared to accept. It
was in this period that John Bingham uttered his threat to annihilate the
Court, while his colleagues manipulated the size of the Court thrice and
stripped it of jurisdiction.29
The third period continued until 1937. During this time the Supreme
Court learned the importance of playing to a constituency, of having a patron
that could protect it. Between the end of Reconstruction and the Great
Depression, the judiciary grew in power by offering its backing to corporate
and commercial interests that exercised enormous authority throughout the
countly.30 In the late 1800s, the federal judiciary eliminated state laws that
interfered with interstate commerce. In the early 190os, the courts struck
down progressive legislation adopted to ease the plight of workers caught
up in America's industrial revolution. Throughout this long period there
were many attempts to control the judges; some were successful, but many
failed. Although the reasons why it proved so hard to control the judges in
struggle after struggle were complex, the impact of the failure was not. The
result was a great loss of faith in the objectivity of the judiciary and of law
itselPI
The Court fight of 1937 served as the threshold to the modern era. Central
to the importance of these events was Roosevelt's success in assembling
a coalition of the common people of the country. With Roosevelt's chief
constituency signaling its disapproval of the Court-packing plan, the idea of
control gave way to the seeming supremacy for which the Court is noted today.
In retrospect, the Supreme Court's breathtaking 1954 decision in Brown
v. Board ofEducation barring segregated public schools was but the opening
salvo in what has been sweeping judicial intervention in some of the country's
most controverted issues. Since the 1950S, the Supreme Court has
14 1'?0 THE WILL OF THE PEOPLE
granted women equality, legalized abortion, expanded the rights of criminal
defendants, taken control over imposition of the death penalty, recognized gay
lights, banned prayer in schools, limited Congress's power to regulate as it
sees fit, and even decided one of history's closest presidential elections.
No wonder that today the Supreme Court is described as practically impregnable.
Politicians decry the justices; scholars condemn them. Remedies
for judicial power are sought. Yet year after year, the nine members of the
Court take their seats on the nation's highest bench and continue to tell
Americans what the Constitution means, seemingly aloof from the controversy
that swirls about them.